MORAN -v- SCHWARTZ PUBLISHING PTY LTD [No 4] [2015] WASC 328

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 328
Published:	01/09/2015
Case No:	CIV:1894/2014	Heard:	11 AUGUST 2015
Coram:	KENNETH MARTIN J	Delivered:	11/08/15
No of pages:	17	Judgment Part:	1 of 1
Result:	Application allowed as amended
Category:	B
PDF Version

Parties:	TOBIAS FRIEDRICH MORAN SCHWARTZ PUBLISHING PTY LTD VIRGINIA PETERS
Catchwords:	Practice and procedure Implied undertaking Obligation not to use discovered documents or documents produced on subpoena for purposes other than the proceedings Application for leave to use court documents and documents produced on subpoena for limited purpose of making complaint about a third party to the Office of the Legal Services Commissioner of New South Wales Public interest Turns on own facts
Legislation:	Nil
Case References:	Bedshed Franchising Pty Ltd v Battersby [No 2] [2015] WASC 281 Crest Homes Plc v Marks [1987] AC 829; [1987] 3 WLR 293 Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10 Hearne v Street [2005] HCA 36; (2005) 235 CLR 125 Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 Medway v Doublock Ltd [1978] 1 WLR 710; [1978] 1 All ER 1261 Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149 Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35 Moran v Schwartz Publishing Pty Ltd [No 3] [2015] WASC 215 Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756; [1991] 3 All ER 878 Re Addstone Pty Ltd (In liq); Ex parte Macks [1998] FCA 1680; (1998) 30 ACSR 156 Spalla v St George Motor Finance Ltd [2004] FCA 1014; (2004) 209 ALR 703 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720; (1992) 110 ALR 685

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MORAN -v- SCHWARTZ PUBLISHING PTY LTD [No 4] [2015] WASC 328 CORAM : KENNETH MARTIN J HEARD : 11 AUGUST 2015 DELIVERED : 11 AUGUST 2015 PUBLISHED : 1 SEPTEMBER 2015 FILE NO/S : CIV 1894 of 2014 BETWEEN : TOBIAS FRIEDRICH MORAN

Plaintiff

AND

SCHWARTZ PUBLISHING PTY LTD

First Defendant

VIRGINIA PETERS

Second Defendant

Catchwords:

Practice and procedure - Implied undertaking - Obligation not to use discovered documents or documents produced on subpoena for purposes other than the proceedings - Application for leave to use court documents and documents produced on subpoena for limited purpose of making complaint about a third party to the Office of the Legal Services Commissioner of New South Wales - Public interest - Turns on own facts

Legislation:

Nil

Result:

Application allowed as amended

Category: B

Representation:

Counsel:

Plaintiff : Mr M L Bennett

First Defendant : No appearance

Second Defendant : No appearance

Solicitors:

Plaintiff : Bennett + Co

First Defendant : Carmel Galati

Second Defendant : Carmel Galati

Case(s) referred…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] WASC 328
Decision Date: 1 SEPTEMBER 2015

CaseChat Overview and Summary

The case of Moran v Schwartz Publishing Pty Ltd (No 4) involved an application by the plaintiff, Mr Moran, to use court documents and documents produced on subpoena for the limited purpose of making a complaint about a third party to the Office of the Legal Services Commissioner of New South Wales. This application arose from an implied undertaking not to use the discovered documents for any other purpose than the proceedings in which they were produced. The matter was heard in the Supreme Court of New South Wales.

The legal issue before the court was whether Mr Moran's proposed use of the documents for the purpose of lodging a complaint with the Office of the Legal Services Commissioner constituted a breach of the implied undertaking. This undertaking was intended to prevent the documents from being used for any purpose other than the litigation in which they were discovered, unless leave of the court was obtained. The court had to balance the competing interests of protecting the integrity of the litigation process against the public interest in ensuring that legal professionals act in an ethical manner.

The court found that the proposed use of the documents was in the public interest and would not constitute a breach of the implied undertaking. The court held that the public interest in ensuring that legal professionals act in an ethical manner and in the interests of justice outweighed the potential prejudice to the defendants. The court granted the application as amended, allowing Mr Moran to use the documents for the purpose of making a complaint to the Office of the Legal Services Commissioner. The court also noted that the use of the documents would be limited to the specific purpose of the complaint and would not be used to further the plaintiff's case in the litigation.

Orders

Orders of the court

Application allowed as amended

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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